Home

I was invited to attend the ceremony of the signing of the Memorandum of Understanding between the Birmingham District Office of the Equal Employment Opportunity Commission and the Consulate General of the United Mexican States from the Atlanta, Georgia office. The EEOCs Birmingham District Offices territory includes all of Alabama, most of Mississippi and the panhandle of Florida. The Mexico Consulate Generals territory located in Atlanta includes all of Georgia, all of Alabama, and parts of Tennessee.

Other invited guests included representatives from the NAACP, the National Labor Relations Board, and a Hispanic Outreach organization. My role was to serve as a representative of Alabama employers who have an interest in immigration matters.

EEOC Director Delner Franklin-Thomas stated that the purpose of the MOU was to establish cooperation between the Mexico Consulate General and the EEOC relating to the education of immigrants on their rights under the laws enforced by the EEOC, including the laws that prohibit national origin discrimination.

Emanuel Smith, the EEOCs Regional Attorney, explained that the number of national origin charges have doubled in recent years.

Although not expressly stated, it appeared clear that the EEOC intends to focus on national origin discrimination claims by immigrants, regardless of whether such individuals are authorized to work in the United States. The EEOC is focused on enforcement of the EEO laws, and will leave enforcement of the immigration laws to other government agencies who have such responsibility.

What does this mean for employers?

The additional outreach may result in more Hispanics and Latinos pursuing national origin claims. If such workers fears relating to interactiing with the government and the courts are alleviated, they will feel free to pursue their rights.

The fact that a worker may not be authorized to work or even be authorized to be present in the United States will not matter one bit to the EEOC.

Having the unfortunate experience of negotiating settlements of fines imposed by ICE following an inspection, Ive experienced a few things, some of which are similar to others experiences (as I have read) and some perhaps not, which I share below:

Following an inspection but prior to the issuance of a Notice of Intent to Fine (NIF), consider reaching out to your local ICE attorney and determine if negotiations may occur pre-NIF. My most recent negotiation involved a pre-NIF negotiation. What I was told is that the ICE attorney had more flexibility to negotiate prior to the issuance of the NIF. It seems logical, and based on my experience, I believe it to be true. I would negotiate pre-NIF again given the opportunity.

Of course the fines may be reduced and the reduction does not have to make sense. While it may be helpful to find arguments to support the reduction (such as errors in the NIF), ICEs settlement number does not have to correlate in terms of the math and the schedule of fines. In other words, I have found the process to be similar to negotiating a settlement of a lawsuit the numbers can be a little arbitrary, as long as there is a dispute going on.

ICE may be willing to stretch out payments as long as 72 months, and based on the very low applicable interest rate, thats a deal!

Dont agree that the settlement will bind all related entities or a particular individual such as the owner. It should only bind the employer that was the subject of the inspection.

ICE can agree to not issue a press release, although it cant agree not to respond to inquiries or requests about the settlement. Avoiding a press release may be of value to you.

Its not a pleasant process, but with some help, you can make the best of the negotiation and get the best deal you can.

The American Immigration Lawyers Association recently published a consumer advisory for potential beneficiaries of President Obama’s Executive Orders relating to Deferred Action. The advisory provides some summary information that is helpful for businesses to understand as well, including:

Deferred Action may be available to two groups of undocumented individuals who have been living in the U.S. since January 1, 2010: (1) People who came here as children; and (2) Parents of U.S. citizens or lawful permanent residents.

No one can apply yet. Applications for expanded Deferred Action may be able to apply in mid-February, and applications for the new Deferred Action may be able to apply in mid-May.

Not everyone who applies will qualify. There are other requirements that must be met other than being a parent of a citizen or permanent resident or being a childhood arrival.

Some unscrupulous people are trying to take advantage of individuals who may be seeking Deferred Action by providing inaccurate information or making promises that can’t be kept.

In addition, there are some, and may be more, legal challenges to President Obama’s Executive Action that could delay or otherwise substantially change the process. For now, businesses should stay abreast of the issues and understand the impact they may have on potential future authorized workers.

By virtue of President Obama’s executive action, there will be more potential work-authorized employees to hire. The executive action increased the number of Deferred Action for Childhood Arrivals beneficiaries, who are eligible for employment authorization if they file a petition and receive an Employment Authorization Document I-766. Employers need to get familiar with the Employment Authorization Document if it is presented by the employee when completing the Form I-9.

With the increased number of potential beneficiaries also comes the increased possibility that employers will face additional challenges with existing or former employees. Here are some Q&As that hopefully will be useful:

What should an employer do if it learns that one of its existing employees has filed a petition for work authorization? The employer cannot under the law continue to employee the individual because the employer now has actual knowledge that the employee is not currently work authorized. The employee should be immediately terminated or the employer will face the risks associated with continuing to employee an unauthorized worker.

What if an employer has terminated an employee in the past due to the fact that it was discovered (either through an ICE audit or internal audit) that the employee was not work authorized and now such employee seeks to be reemployed as a result of the employee’s new work authorization? The employer may evaluate that employee’s application for employment the same as any other employee who is currently work authorized.

What should an employer do if an existing employee presents an Employment Authorization Document I-766, but the employee previously attested at the time of hire to being a U.S. citizen or Lawful Permanent Resident on his I-9 Form and presented false documents for the purpose of completing the I-9 form? This is a little tricky, because the employee is now work authorized but lied in the past. The employer may have a written honesty policy that prohibits an employee from submitting false information or documents to the employer. Consistent disciplinary or termination in response to violations of a honesty policy may allow the employer to address the past documentation fraud, but if the employer has not been consistent in its approach to other types of violations, then adverse action against the employee may draw the attention of the Office of Special Counsel, which investigates discrimination.

Recently, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (“INA”), issued a technical assistance letter providing guidance on what is called “over-documentation.”

Over-documentation occurs when an employer requests or accepts more documents than required for the proper completion of Section 2 of the I-9 form. For example, an employer might record a U.S. Passport, which is List A document, and also a social security card, which is a List C document. Because an employer need only record either a List A or a List B and List C document, such action would constitute “over-documentation.”

It’s a common thing by employers. I see it all the time. Here’s what the OSC said about this practice:

“An employer may violate the anti-discrimination provision of the INA if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process.”

“If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon whether the employer made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.

Based on my experience, most employers that have over-documented their I-9s have not “requested” more documents than required, but instead, have simply just recorded everything the employee gave them. So, that raises the question of what should an employer do if an employee hands them numerous acceptable documents for the I-9 completion.

Here’s my suggestion: Either tell the employee exactly what you need (i.e., a List A or a List B and List C document), and let the employee then choose what to provide, or just grab the document(s) that you need and not record the rest.